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badger
8/15/2011, 02:03 PM
Obama says the Supreme Court isn't going to overturn Obamacare.

Link (http://newsok.com/obama-supreme-court-will-uphold-health-care-law/article/feed/285984?custom_click=headlines_widget)

Do you agree?

This applies only the individual mandate that requires people to have personal health insurance.

Midtowner
8/15/2011, 03:02 PM
I honestly have no idea. Counting the votes, I think I can give Obamacare 4 solids and then several maybes. As I understand it, the question is whether the commerce clause can be interpreted to require someone to engage in interstate commerce as opposed to the state simply regulating it.

Kennedy is a maybe... God only knows what Kennedy is going to do on any given day.

Scalia is maybe; before someone gets histrionic on me, in a 2005 concurring opinion, Scalia wrote:


“The court [has] recognized that [non-economic activity can] be regulated as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,’” Scalia wrote. Then, he endorsed a rather broad interpretation of the Necessary and Proper Clause: “As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

more here: http://www.nationalreview.com/articles/259267/scalia-and-commerce-clause-robert-verbruggen#

So, Scalia is a question mark as well.

Thomas is Conservative and generally writes pretty unenlightened opinions supporting whatever the Republican cause du jour is. He has written some positively scary stuff. I used to be ambivalent about Thomas until he wrote in Hamdi v. Rumsfeld that he believed in a national security exception to all of our civil rights. Scary as hell.

Alito and Roberts will vote predictably with the right wing.

If either Kennedy or Scalia vote with the left-leaning justices, Obama wins. And if I'm giving odds, I give Obamacare 60/40 odds of surviving the SCOTUS.

ETA: Anyone who says they know what the SCOTUS is going to do here is completely full of ****.

OUHOMER
8/15/2011, 03:37 PM
At least the mandatory regulation that you have to have insurance. I dont think they shoot the whole thing down.

NormanPride
8/15/2011, 03:58 PM
I think we need to rewrite the constitution and start from scratch.

Midtowner
8/15/2011, 03:59 PM
I think we need to rewrite the constitution and start from scratch.

Oh hell no.

You think the fortune 500 has too much power now?

pphilfran
8/15/2011, 04:13 PM
I think it is a tossup...though I voted that they would uphold....

NormanPride
8/15/2011, 04:27 PM
Yeah, the super-geniuses we have in charge now are likely to do a MUCH better job than they did in 1789.
Didn't say they should make it. :D

hawaii 5-0
8/15/2011, 04:43 PM
I'm not really for a forced individual mandate.

I like the part about not being denied for pre-existing conditions.

I like the part about providing healthcare to children.

Having to wait till you're so sick you have to go to the Emergency Room isn't my idea of adequate healthcare. That's what millions of people were forced to do.


5-0


Trump/ Reed 2012

Midtowner
8/15/2011, 05:02 PM
If I was on the Court, just shooting from the hip and not having read any of the briefs, I'd probably uphold the healthcare bill. The commerce clause has been allowed to control the channels and instrumentalities of interstate commerce, and that's what this bill does, or at least it regulates something which has an impact on interstate commerce, which also is kosher.

That doesn't mean it's a good idea. It's a system that's built to allow the insurance companies to either learn how to be responsible citizens, or to create an entitlement expectation in the people and to let the insurance companies hang themselves, resulting in a more nationalized, centralized system, and a country that wants to vote for Dems to save us all.

There hasn't ever been a limit to what the feds can do with regard to the regulation of interstate commerce, no areas which are expressly off-limits, except stuff that's not interstate commerce. Unless we want to make a new rule up from whole cloth, I don't see how this is overturned, but judges can be some creative folks. It'll be interesting to see how this comes out.

To be clear, I don't agree that it's good policy to have a commerce clause which affords Congress unlimited power in that area, but that appears to be what we have. At this point, the judiciary is the wrong branch of government to be able to do something about that.

sappstuf
8/15/2011, 05:29 PM
I think the individual mandate gets struck down. Forcing people to buy from private companies will be a bridge too far for the SCOTUS.

If the Dems would have went the full Monty and passed 'single payer' they would have been in the clear.

Caboose
8/15/2011, 05:42 PM
I think the individual mandate gets struck down. Forcing people to buy from private companies will be a bridge too far for the SCOTUS.

If the Dems would have went the full Monty and passed 'single payer' they would have been in the clear.

Single payer... payed for how?

sappstuf
8/15/2011, 06:00 PM
Single payer... payed for how?

I'm not advocating it.. I am just making the point that I think it would have been found constitutional.

Curly Bill
8/15/2011, 06:57 PM
Single payer... payed for how?

We put it on the USA credit card along with everything else. :D

jkjsooner
8/15/2011, 07:56 PM
The first is necessary for the second, or the insurance companies are all out of business.

This is why single payer was a better solution than what we got. Oh, well.

Because this is attached to the tax code, in my opinion, congress doesn't need additional justifications. It's easy to frame this just as the mortgage deduction is framed. Are we forcing peopel to buy homes? (And, please spare me with a lecture on the difference between a credit, a penalty, and a deduction. None of that seems material to the argument.)

Now to the Froze's quote.. I agree with the rationale but I can't see how insurance companies will remain solvent considering the penalty for not having insurance was reduced so drastically. They needed a disincentive for those who would wait to get insurance until sick and they hardly succeeded.

sappstuf
8/16/2011, 04:41 PM
Here is some of the ruling from the 11th circuit.


The fact that Congress has never before exercised this supposed authority is telling. . . . Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.


Congress did not require everyone who owns a house in a flood plain to purchase flood insurance. In fact Congress did not even require anyone who chooses to build a new house in a flood plain to buy insurance. Rather Congress created a series of incentives designed to encourage voluntary purchase of flood insurance. . . . Without an ‘individual mandate,’ the flood insurance program has largely been a failure.

They then say there are only 4 mandates on American citizens:


serving on juries, registering for the draft, filing tax returns, and responding to the census.

Note that none of those mandates involves a private company.


Although health care consumption is pervasive, the plaintiffs correctly note that participation in the market for health care is far less inevitable than participation in markets for basic necessities like food or clothing.

The SCOTUS
never had to address any temporal aspects of congressional regulation. However, the premise of the government’s position — that most people will, at some point in the future, consume health care — reveals that the individual mandate is even further removed from traditional exercises of Congress’s commerce power.

soonercoop1
8/16/2011, 06:10 PM
Obama says the Supreme Court isn't going to overturn Obamacare.

Link (http://newsok.com/obama-supreme-court-will-uphold-health-care-law/article/feed/285984?custom_click=headlines_widget)

Do you agree?

This applies only the individual mandate that requires people to have personal health insurance.

No way does this court allow the mandate...Obamacare is finished all thats left is the stalling...

landrun
8/16/2011, 07:44 PM
Ok lawyer types, explain something to me.
How can we be forced to buy auto insurance and not health insurance?

The only thing difference I see is with car insurance you're protecting OTHER people too, not just yourself.

Sooner5030
8/16/2011, 07:53 PM
Ok lawyer types, explain something to me.
How can we be forced to buy auto insurance and not health insurance?

The only thing difference I see is with car insurance you're protecting OTHER people too, not just yourself.

You are only forced to purchase car insurance if you CHOOSE to drive a motor vehicle on PUBLIC property (roads)! I cannot choose to live out of the public, declare that I do not want access to health care and not be required to PAY for a PRIVATE product......according to the bill that passed.

Liberty sucks but I think it should be protected at the expense of little johnny not getting his "free" Ritalin.

oh...and I don't have a JD nor did I sleep at a holiday inn.

soonercruiser
8/16/2011, 08:34 PM
"Obama says"....is that like Simon...?

-Unemployment under 8%?

-deficit cut in half?

-Tea Part as terrorists?
..............................:rolleyes:

Midtowner
8/16/2011, 10:19 PM
You are only forced to purchase car insurance if you CHOOSE to drive a motor vehicle on PUBLIC property (roads)! I cannot choose to live out of the public, declare that I do not want access to health care and not be required to PAY for a PRIVATE product......according to the bill that passed.

Liberty sucks but I think it should be protected at the expense of little johnny not getting his "free" Ritalin.

oh...and I don't have a JD nor did I sleep at a holiday inn.

Wow. Your capitalized words have convinced me.

It's still a question of the commerce clause, and any limits to it are just making up new law.

That's the question--is the SCOTUS ready to make from whole cloth a brand new exception to the commerce clause? It's possible, but as I discussed before, unlikely.

sappstuf
8/16/2011, 10:48 PM
Wow. Your capitalized words have convinced me.

It's still a question of the commerce clause, and any limits to it are just making up new law.

That's the question--is the SCOTUS ready to make from whole cloth a brand new exception to the commerce clause? It's possible, but as I discussed before, unlikely.

Are you saying that the commerce clause is the most powerful law in the universe with no exceptions?

Veritas
8/16/2011, 10:51 PM
The financial responsibility requirement to drive a motor vehicle is state law. States have plenipotentiary police powers (within certain limits). There is no concomitant police power in the federal government: the ability of the federal congress to legislate is curtailed by the enumerated powers of Article I § 8, the necessary and proper clause, and Amendment 14 § 5.
You're so ****ing sexy when you use them lawyer words.

Midtowner
8/17/2011, 06:46 AM
Are you saying that the commerce clause is the most powerful law in the universe with no exceptions?

No, of course there are exceptions. For example, the clause only applies to channels and instrumentalities of interstate commerce or things which might have an indirect effect thereon. The commerce clause has been held not to apply to people, for example, because people were channels and instrumentalities of interstate commerce (SCOTUS struck down a law against rape or violence to women or something to that effect).

What I'm saying is that none of the exceptions we have apply to this particular law without making up a new one. The Court could do that of course, but that's what it'd have to do.

sappstuf
8/17/2011, 07:03 AM
No, of course there are exceptions. For example, the clause only applies to channels and instrumentalities of interstate commerce or things which might have an indirect effect thereon. The commerce clause has been held not to apply to people, for example, because people were channels and instrumentalities of interstate commerce (SCOTUS struck down a law against rape or violence to women or something to that effect).

What I'm saying is that none of the exceptions we have apply to this particular law without making up a new one. The Court could do that of course, but that's what it'd have to do.

What are the things citizens are required to do by the federal government and do they involve private companies?

Hint: There are only 4 things.

sappstuf
8/17/2011, 08:28 AM
President Clinton considered an individual mandate.. This is how he was counseled by his own people:


mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action. . . . [Congress] has never required people to buy any good or service as a condition of lawful residence in the United States.

11th circuit was pretty clear.


At root, the [government] relies upon a convenient sleight of hand to deflect attention from the central issue in the case: what is the nature of the conduct being regulated by the individual mandate, and may Congress reach it?

Accordingly, the government adroitly and narrowly re-defines the regulated activity as the uninsured’s health care consumption and attendant cost-shifting, or the timing and method of payment for such consumption.

Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none. . . . This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them repurchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.

Midtowner
8/17/2011, 08:38 AM
11th circuit was pretty clear.

And the SCOTUS may or may not adopt the 11th Circuit's reasoning. If you pretend to know what they're going to do, you're 100% full of ****. You can only guess. Very likely, as with most things it rests on what Kennedy does, and as I said before, Scalia has also given some indication that he might think this sort of behavior would be constitutional.

--or do you actually think the SCOTUS is bound by something a lower court does?

OutlandTrophy
8/17/2011, 08:40 AM
is he guessing like you are?

sappstuf
8/17/2011, 08:50 AM
And the SCOTUS may or may not adopt the 11th Circuit's reasoning. If you pretend to know what they're going to do, you're 100% full of ****. You can only guess. Very likely, as with most things it rests on what Kennedy does, and as I said before, Scalia has also given some indication that he might think this sort of behavior would be constitutional.

--or do you actually think the SCOTUS is bound by something a lower court does?

A strong well written opinion from the 11th will have an effect on the SCOTUS. The court demolished the government's argument. And if you believe(I don't) that politics matter, one of the writers was a Clinton appointee.

Compare that to the 6th circuit opinion that upheld the mandate, but the judge still said:


the lingering intuition . . . that Congress should not be able to compel citizens to buy products they do not want.

Midtowner
8/17/2011, 08:54 AM
A strong well written opinion from the 11th will have an effect on the SCOTUS

No, the SCOTUS doesn't even have to read the 11th Circuit's opinion if they don't want to. This is decided de novo, which means that there aren't presumptions either way.

How well-written you think a Circuit opinion is is irrelevant here.

jkjsooner
8/17/2011, 08:57 AM
They then say there are only 4 mandates on American citizens:

And if some around here had their way, a Soviet style mandate to carry documentation at all times.

sappstuf
8/17/2011, 08:57 AM
No, the SCOTUS doesn't even have to read the 11th Circuit's opinion if they don't want to. This is decided de novo, which means that there aren't presumptions either way.

How well-written you think a Circuit opinion is is irrelevant here.

And you really think that is going to happen? Honestly? I think you just being combative.

sappstuf
8/17/2011, 09:08 AM
Congress passed a law right after the ratification of the Constitution requiring every man over the age of 16 to purchase a firearm under their Article I § 8 powers. Acting like Congress has never required anyone to purchase anything at any time is fatuous. The 11th Circuit enumerated four things that the federal government currently mandates, but the argument "Congress doesn't do this now, so they can't ever" is kind of weak.

Out of curiosity, what was the penalty for not following the law? For Obamacare it is $700 annually or 2.5% of income.

Was a single person prosecuted for not following the law?

jkjsooner
8/17/2011, 09:15 AM
I asked this before but I'd love to hear the lawyers explain the difference between this mandate and a mortgage deduction.

* Both change the tax you owe
* Both encourage someone to buy something

Is the difference really that one is framed as a "penalty." That seems like a terribly weak argument to me.

Call it a $700 tax increase on everyone and a separate $700 credit for those who have insurance.

jkjsooner
8/17/2011, 09:16 AM
Out of curiosity, what was the penalty for not following the law? For Obamacare it is $700 annually

Which is not nearly enough to keep people from waiting until they're sick to get insurance.

pphilfran
8/17/2011, 09:17 AM
I asked this before but I'd love to hear the lawyers explain the difference between this mandate and a mortgage deduction.

* Both change the tax you owe
* Both encourage someone to buy something

Is the difference really that one is framed as a "penalty." That seems like a terribly weak argument to me.

Nobody is telling you that you have to buy a house...

sappstuf
8/17/2011, 09:17 AM
Which is not nearly enough to keep people from waiting until they're sick to get insurance.

Which just means the Dems wrote a terrible bill and then passed it to find out what was in it...

What was the penalty for not owning a firearm?

sappstuf
8/17/2011, 09:18 AM
I asked this before but I'd love to hear the lawyers explain the difference between this mandate and a mortgage deduction.

* Both change the tax you owe
* Both encourage someone to buy something

Is the difference really that one is framed as a "penalty." That seems like a terribly weak argument to me.

Why doesn't the federal government force people to buy flood insurance when they live in a flood plain?

OutlandTrophy
8/17/2011, 09:22 AM
you can also purchase a house without a mortgage

jkjsooner
8/17/2011, 09:28 AM
Nobody is telling you that you have to buy a house...

Nobody is telling you that you have to buy health insurance either.

OutlandTrophy
8/17/2011, 09:31 AM
Nobody is telling you that you have to buy insurance either.

say what? Do you not have to pay a fine if you do not have insurance?

jkjsooner
8/17/2011, 09:33 AM
you can also purchase a house without a mortgage

Fine, we're forcing people to buy a house with a mortgage or else pay higher taxes. Is that better?

OutlandTrophy
8/17/2011, 09:34 AM
Fine, we're forcing people to buy a house with a mortgage. Is that better?

what? Nobody is forced to buy a house with a mortgage.

jkjsooner
8/17/2011, 09:34 AM
say what? Do you not have to pay a fine if you do not have insurance?

Do you not have to pay higher taxes (assuming you exceed standard deductions) if you don't buy a house with a mortgage?

I can frame the argument in the exact same way.

soonercruiser
8/17/2011, 09:35 AM
Nobody is telling you that you have to buy health insurance either.

Come on jk!
What planet are you on? :rolleyes:

OutlandTrophy
8/17/2011, 09:35 AM
You're bad at math if you think it's better to take the mortgage intrest deduction than it is to not have a mortgage.

OutlandTrophy
8/17/2011, 09:36 AM
jkjsooner, do you think that Congress can mandate that everyone purchase a handgun?

pphilfran
8/17/2011, 09:36 AM
How about the childcare deduction?

OutlandTrophy
8/17/2011, 09:37 AM
Do you not have to pay higher taxes (assuming you exceed standard deductions) if you don't buy a house with a mortgage?

I can frame the argument in the exact same way.

You pay less money if you do not have a mortgage. It costs you more money to pay interest and take the deduction than if you don't have a mortgage and don't get to take the deduction.

Midtowner
8/17/2011, 09:39 AM
And you really think that is going to happen? Honestly? I think you just being combative.

The Supremes can consider whatever they want. That's why they're Supreme. I presume I've read a few more opinions than you have. I can't recall too many SCOTUS opinions referring to the well-reasoned opinions of a lower court. They don't care. They have their own ideologies, they see the issues as they are framed by the briefs, and they rule in accordance with their philosophies.

The 11th Circuit isn't special, their opinion is no better than that of the 6th Cir., you just happen to agree with it, so you think it's well written.

soonercruiser
8/17/2011, 09:39 AM
Congress passed a law right after the ratification of the Constitution requiring every man over the age of 16 to purchase a firearm under their Article I § 8 powers. Acting like Congress has never required anyone to purchase anything at any time is fatuous. The 11th Circuit enumerated four things that the federal government currently mandates, but the argument "Congress doesn't do this now, so they can't ever" is kind of weak.

Wow!
Didn't know that!
Nothing has changed since then, has it?
Glad I bought a gun last year. :rolleyes:

jkjsooner
8/17/2011, 11:04 AM
jkjsooner, do you think that Congress can mandate that everyone purchase a handgun?

No, but they can raise taxes $x amount and say, if you own a handgun you will get an $x credit for owning a hangun.

Same with children by the way. Are we forcing you to have a child?

sooner_born_1960
8/17/2011, 11:06 AM
The maximum penalty under the Militia Act of 1792 was imprisonment under the then-extant military code. I have no idea whether anyone was imprisoned for failing to produce a firearm.

I did, however, misremember the relevant ages. It was every able-bodied man from 18 to 45, not every man over 16. I apologize for the misstatement.
As well you should.

jkjsooner
8/17/2011, 11:09 AM
You're bad at math if you think it's better to take the mortgage intrest deduction than it is to not have a mortgage.

You're also bad at math if you think buying insurance is cheaper than paying a $700 fee.

In either case, I'm not sure how this is relevant to the discussion.

OutlandTrophy
8/17/2011, 11:11 AM
Not everyone needs to purchase a house just like not everyone needs to have health insurance.

What other products do you think Congress should fine us for not owning?

OutlandTrophy
8/17/2011, 11:14 AM
Being as you are hung up on the mortgage deduction please show me where anyone is punished or fined by not having a mortgage.

I'd like you to show me where people can be fined and tell me how much that fine is for not having a mortgage.

TIA

sooner_born_1960
8/17/2011, 11:14 AM
What other products do you think Congress should fine us for not owning?
A Bible.

jkjsooner
8/17/2011, 11:16 AM
Nobody has attacked my basic premise - that governments have used the tax code over and over to encourage certain behaviors. Whether you agree with it or not, is not new or novel and has been upheld by the courts. I don't see how the "mandate" differs from this.

The only difference is on how this the mandate is framed. We call it a "mandate" and a "penalty". That is simply a matter of semantics and to me wouldn't seem to hold much legal weight.

OutlandTrophy
8/17/2011, 11:18 AM
That's not a new premise but it is accurate.

The problem you're running into is that nobody is fined for not buying an electric car, they are not fined for not putting insulation in their attic although if you did either last year you got some of your money back.

sooner_born_1960
8/17/2011, 11:18 AM
Nobody has attacked my basic premise - that governments have used the tax code over and over to encourage certain behaviors. Whether you agree with it or not, is not new or novel and has been upheld by the courts. I don't see how the "mandate" differs from this.

The only difference is on how this the mandate is framed. We call it a "mandate" and a "penalty". That is simply a matter of semantics and to me wouldn't seem to hold much legal weight.
That's just plain stupid.

sooner_born_1960
8/17/2011, 11:20 AM
The difference is a mandate versus an incentive. That is a huge difference.

jkjsooner
8/17/2011, 11:23 AM
Being as you are hung up on the mortgage deduction please show me where anyone is punished or fined by not having a mortgage.

It's all how you frame it. As a renter (for the next month) who can't deduct part of my rent from my taxes it sure seems like a penalty to me. My state/local taxes put me right at the standard deduction line. Any mortgage deduction would apply 100% to reduce my taxable income.

The child income credit is probably a better example just because a credit aligns more closely with this penalty.

If they would have said, "We're raising taxes on you $700 but we're also giving you a health insurance credit of $700," would that satisfy you? From a legal standpoint is that materially different than what they have?

jkjsooner
8/17/2011, 11:27 AM
The difference is a mandate versus an incentive. That is a huge difference.

So you're saying the words we use to describe it is relevant to the constitutionality of it? That's fine if you feel that way but that seems to be a shaky argument to me.

In practice, these things are equivalent even if we call one a mandate and the other an incentive.

pphilfran
8/17/2011, 11:31 AM
So you're saying the words we use to describe it is relevant to the constitutionality of it? That's fine if you feel that way but that seems to be a shaky argument to me.

In practice, these things are equivalent even if we call one a mandate and the other an incentive.

Mandate means that everyone is getting it...there is no choice...

Incentive means their will be supplements to those that elect to use the incentive...there is a choice....

OutlandTrophy
8/17/2011, 11:32 AM
you are not fined for not having a mortgage. It's a very simple concept. If you feel that people are fined please show me how much you are fined. Who do you pay that fine to?

JLEW1818
8/17/2011, 11:33 AM
what a great president

NormanPride
8/17/2011, 11:34 AM
It's ****ing semantics. Ugh.

OutlandTrophy
8/17/2011, 11:35 AM
It's all how you frame it. As a renter (for the next month) who can't deduct part of my rent from my taxes it sure seems like a penalty to me. My state/local taxes put me right at the standard deduction line. Any mortgage deduction would apply 100% to reduce my taxable income.



then get a mortgage if you want that deduction.

sooner_born_1960
8/17/2011, 11:37 AM
I guess the incentive for buying health insurance is not getting fined. You win.

sooner_born_1960
8/17/2011, 11:38 AM
You're right. It's just an incentive under another name.

OutlandTrophy
8/17/2011, 11:38 AM
If McDonald's runs a special of 30% off for their Big Macs, is anyone penalized if they instead order a Quarter Pounder with cheese?

Ike
8/17/2011, 11:42 AM
As far as the mandate goes, what I don't get is why they made it a tax penalty for not having insurance, rather than a tax credit for having insurance (along side an identically sized tax increase). You get to the same result, but now it's not technically a mandate. It's a tax break, and would thus (in my non-lawyer opinion) have a much lower legal hurdle.

sooner_born_1960
8/17/2011, 11:44 AM
As far as the mandate goes, what I don't get is why they made it a tax penalty for not having insurance, rather than a tax credit for having insurance (along side an identically sized tax increase). You get to the same result, but now it's not technically a mandate. It's a tax break, and would thus (in my non-lawyer opinion) have a much lower legal hurdle.
Because a lot of people, for various reasons, wouldn't see any of the tax increase.

jkjsooner
8/17/2011, 11:46 AM
Mandate means that everyone is getting it...there is no choice...

Incentive means their will be supplements to those that elect to use the incentive...there is a choice....


There is a choice! If you don't want to get it then pay higher taxes.

The only way you can claim it is not a choice is because you use words like "mandate" and a "penalty". (Given, I believe these words are also used in the actual law. This could end up being monumental mistake if the courts take your view on this matter.)

If you called it a tax hike with a corresponding "incentive" and "credit" would you consider it a choice?

In real terms how is one any more forceful than the other?

pphilfran
8/17/2011, 11:47 AM
There is a choice! If you don't want to get it then pay higher taxes.

The only way you can claim it is not a choice is because you use words like "mandate" and a "penalty". (Given, I believe these words are also used in the actual law. This could end up being monumental mistake if the courts take your view on this matter.)

If you called it a tax hike with a corresponding "incentive" and "credit" would you consider it a choice?

In real terms how is one any more forceful than the other?

If you are getting fined for non compliance it is not a choice...

pphilfran
8/17/2011, 11:48 AM
Keep in mind I think the legality is a toss up....for the record I think it will be upheld...

OutlandTrophy
8/17/2011, 11:50 AM
If you are getting fined for non compliance it is not a choice...

he does not understand.

sooner_born_1960
8/17/2011, 11:52 AM
How would you go about ensuring that every single person would have their taxes raised $700?

OUMallen
8/17/2011, 11:53 AM
I haven't chimed in yet on this one. FWIW, I can't imagine this is constitutional. But we'll see. There is current jurisprudence out there I don't agree with, either.

Caboose
8/17/2011, 11:54 AM
If McDonald's runs a special of 30% off for their Big Macs, is anyone penalized if they instead order a Quarter Pounder with cheese?

In this case everyone is penalized by having eaten at McDonald's.

OutlandTrophy
8/17/2011, 11:54 AM
:D

Ike
8/17/2011, 12:03 PM
Because a lot of people, for various reasons, wouldn't see any of the tax increase.

But that's something with a technical fix. Heck, the way it stands now, there would probably be a lot of people that for various reasons, wouldn't see any of the penalty.

OutlandTrophy
8/17/2011, 12:05 PM
that's because this administration has issued exemptions for many of their friends.

sappstuf
8/17/2011, 12:37 PM
The maximum penalty under the Militia Act of 1792 was imprisonment under the then-extant military code. I have no idea whether anyone was imprisoned for failing to produce a firearm.

I did, however, misremember the relevant ages. It was every able-bodied man from 18 to 45, not every man over 16. I apologize for the misstatement.

In another words, it referred to the Militia and was a military order. Much closer to the draft.

Not every single American like the healthcare bill.

jkjsooner
8/17/2011, 01:01 PM
then get a mortgage if you want that deduction.

Then get health insurance if you don't want that tax fine.

You've still said nothing that breaks down the equivalence I've postulated except for the the specific terminology used to describe the mandate.

jkjsooner
8/17/2011, 01:03 PM
he does not understand.

I do understand. One man's fine is another man's missing credit.

Call it what you want but in a real sense they are exactly the same.

OutlandTrophy
8/17/2011, 01:08 PM
no, they aren't.

If McDonald's runs a special of 30% off for their Big Macs, is anyone penalized if they instead order a Quarter Pounder with cheese?

NormanPride
8/17/2011, 01:09 PM
If you normally pay no taxes to the government, will you still be fined? Because that seems like the sticking point to me. If one does not have a house and thus a mortgage deduction, then they are taxed higher unless they pay no taxes.

jkjsooner
8/17/2011, 01:12 PM
How would you go about ensuring that every single person would have their taxes raised $700?

It would be pretty easy. Pass a law that states that the tax owed to the IRS is $700 more than what it was previously. How would that be hard?

OutlandTrophy
8/17/2011, 01:14 PM
It would be pretty easy. Pass a law that states that the tax owed to the IRS is $700 more than what it was previously. How would that be hard?

great law:rolleyes:

what if you make less in one year than you did in the previous? Do you still have to pay $700 more than you did last year?

Are you still in college or have you ever attended college?

NormanPride
8/17/2011, 01:14 PM
...Because many people pay no taxes.

jkjsooner
8/17/2011, 01:22 PM
Can we agree on one thing? The following are equivalent in a mathematical sense:

A. Raise taxes uniformly $700. Provide a $700 tax credit for those who have health insurance.

B. Institute a $700 penalty for those who do not have health insurance.

Other that outliers like people who don't owe any taxes these would be absolutely equivalent.

Would you also agree that the courts have decided that option A is constitutional? (Afterall, it's well established that taxes can be raised and tax credits can be used to encourage behavior.)

If so, then you must conclude that the law is not unconstitutional based upon the net effect caused by the law. You can only conclude that it is unconstitutional based because it was presented as a "mandate" and a "penalty".

OutlandTrophy
8/17/2011, 01:24 PM
Taxes have not been raised uniformly. You are still playing "What If".

mathmatically they are the same, legally and Constitutionally they are not.

jkjsooner
8/17/2011, 01:28 PM
Are you still in college or have you ever attended college?

I have a master's degree. WTF does that have to do with anything?

I'm wondering the same about you. At least others have picked on the words like "mandate" to make their arguments. You, on the other hand, just keep bringing up irrelevant statements that do nothing to counter my argument.


what if you make less in one year than you did in the previous? Do you still have to pay $700 more than you did last year?

Edit: Now I get what you are saying and, no, I am not at all saying that at all.

I guess I didn't state the scenario clearly enough. I am saying the tax increase would cause your taxes to be $700 more than they would otherwise be. Nowhere was I saying it would be $700 more than your previous year's taxes. I just assumed that was obvious.

Ike
8/17/2011, 01:30 PM
Not really. Sometimes form does trump substance. With a little though, I can probably come up with some things that would have the same result while being constitutional done one way but not another.

Actually, easily enough:

Congress cannot pass a law mandating a national drinking age of 21. Congress CAN (and did) enact a law telling states they will lose out on federal highway funding if they do not enact a drinking age of 21.

Similarly, Congress can enact a law providing federal funding to states who agree to take toxic waste. Congress CANNOT enact a law penalizing states who refuse to take toxic waste.

Same effect, different means.

In other words, congress can make whatever it damn well pleases be constitutional by simply tap-dancing in the correct manner. ;)

OutlandTrophy
8/17/2011, 01:30 PM
I have a master's degree. WTF does that have to do with anything?

I'm wondering the same about you. At least others have picked on the words like "mandate" to make their arguments. You, on the other hand, just keep bringing up irrelevant statements that do nothing to counter my argument.



And here's another irrelevant question. Yes, in that case you would have to pay more. Do you think just because you made less money one year always means that your taxes will be less in spite of changes in tax law? I can promise you, if we raise taxes (no matter how it's done) there will be some people who pay higher taxes despite lower income. How that could surprise you is beyond me.

BTW, I didn't say it would be a great law. I'm saying it would be a constitutional law.


I was just wondering why you lived in an apartment. I will be starting the 8th grade in about a week.

Now you are talking about raising taxes? That's a whole nother animal altogether, wouldn't you agree?

NormanPride
8/17/2011, 01:35 PM
Exactly.

jkjsooner
8/17/2011, 01:36 PM
Taxes have not been raised uniformly. You are still playing "What If".

mathmatically they are the same, legally and Constitutionally they are not.

Now that is a response I can accept. That's all I was looking for.

jkjsooner
8/17/2011, 01:45 PM
Not really. Sometimes form does trump substance. With a little though, I can probably come up with some things that would have the same result while being constitutional done one way but not another.

Actually, easily enough:

Congress cannot pass a law mandating a national drinking age of 21. Congress CAN (and did) enact a law telling states they will lose out on federal highway funding if they do not enact a drinking age of 21.

Similarly, Congress can enact a law providing federal funding to states who agree to take toxic waste. Congress CANNOT enact a law penalizing states who refuse to take toxic waste.

Same effect, different means.

I'm happy you decided to actually respond to my line of reasoning even if you or the law disagrees with it. At least I'm able to convince people that the result is the same.

I think your second example is a great one to refute my argument.

The first is a little shaky. It doesn't truly fit this scenario in my opinion. I would also point out that that example also shows that money (withholding funds / tax penalty) to force behavior (pass a drinking age law / forcing one to buy insurance) is not the same as outright forcing behavior.

Anyway, I'm just trying to get people to look at things from a different perspective. I'm not trying to win here and I sure don't have the legal knowledge to know if my arguments really do hold water in a legal sense.

jkjsooner
8/17/2011, 01:57 PM
I was just wondering why you lived in an apartment. I will be starting the 8th grade in about a week.

Now you are talking about raising taxes? That's a whole nother animal altogether, wouldn't you agree?

You want to know why? I owned a home at one point and sold because my job was changing and I thought the price appreciation was ridiculous and unsustainable. I didn't buy for years because of the same reason.

Basically, I'm not stupid enough to buy into a bubble.

I now live in an area where housing prices are lower and did not have the ridiculous runup that was seen elsewhere so I am now buying a home. I could easily absorb modest losses in value here. I wasn't willing to absord substantial losses (in both percentages and absolute terms) so I did not buy in a bubble area.

I hope you're not one of those who think all adults must own a home. If so I'm sure RLIMC has some underwater houses in Phoenix for you.

OutlandTrophy
8/17/2011, 01:58 PM
not at all, hippie.

jkjsooner
8/17/2011, 03:54 PM
It goes to the proposition that constitutional results justify unconstitutional means (or however you'd like to frame your argument).

But from a logical standpoint your first example is very different. Outside of wording there is an absolute equivalence between the following:


A tax increase with a credit for doing/buying something.
A tax penatly for not doing/buying something.


Under no circumstances (at least insofar as the point I'm making here) would the consequences of non-compliance be dependent on which of these two were in the law.

In your first example that is not at all true. You propose that the two are just as equivalent:


Feds requiring states to set the drinking age to 21.
Feds withholding funds unless states set the drinking age to 21.


But these are not at all equivalent. Depending on the way the feds tried to implement this, the consequences for state non-compliance could (and would) differ significantly between the two. Non-compliance on the first (if found legal) could easily result in a mess similar to what we had in the early stages of the civil right's movement.

Now it gets confusing because your example sounds a LOT like my argument but in a different way (meaning withholding funds for non-compliance is not the same as forceful compliance) but that was not your point.


To summarize, my problem with your first example was the fact that it consisted of more than just wording the same thing in different ways.